Filed: Sep. 25, 2013
Latest Update: Feb. 12, 2020
Summary: Case: 12-15239 Date Filed: 09/25/2013 Page: 1 of 16 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-15239 Non-Argument Calendar _ D.C. Docket No. 7:12-cr-00006-HL-TQL-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus EDILBERTO RIVIERA-SOLONA, a.k.a. Eddie Riviera, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Georgia _ (September 25, 2013) Before HULL, MARCUS and ANDERSON, Circuit Judges. PER CURIAM:
Summary: Case: 12-15239 Date Filed: 09/25/2013 Page: 1 of 16 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-15239 Non-Argument Calendar _ D.C. Docket No. 7:12-cr-00006-HL-TQL-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus EDILBERTO RIVIERA-SOLONA, a.k.a. Eddie Riviera, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Georgia _ (September 25, 2013) Before HULL, MARCUS and ANDERSON, Circuit Judges. PER CURIAM: ..
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Case: 12-15239 Date Filed: 09/25/2013 Page: 1 of 16
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15239
Non-Argument Calendar
________________________
D.C. Docket No. 7:12-cr-00006-HL-TQL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDILBERTO RIVIERA-SOLONA,
a.k.a. Eddie Riviera,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(September 25, 2013)
Before HULL, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 12-15239 Date Filed: 09/25/2013 Page: 2 of 16
After pleading guilty, Edilberto Rivera-Solona 1 appeals his sentence for
possession with intent to distribute over 500 grams of cocaine, in violation of 21
U.S.C. § 841(a)(1) and 841(b)(1)(B)(ii). On appeal, Rivera-Solona argues that the
government breached the plea agreement by failing to object to the district court’s
imposition of a two-level firearm enhancement under U.S.S.G. § 2D1.1(b)(1).
Rivera-Solona also raises sentencing claims. After review, we affirm Rivera-
Solona’s conviction and sentence and dismiss his sentencing claims pursuant to the
sentence-appeal waiver in the plea agreement.
I. BACKGROUND
A. Arrest and Indictment
In 2011, agents with an FBI task force conducted surveillance on Defendant
Rivera-Solona, whom they suspected of cocaine distribution. Agents watched as
Rivera-Solona drove to his girlfriend’s father’s residence in Coolidge, Georgia,
where he walked around in the woods behind the residence, entered a shed and the
residence and then placed a package inside his car. After conducting a traffic stop,
agents found approximately 1 kilogram of cocaine in a child’s car seat in Rivera-
Solona’s car. In the woods behind the Coolidge residence, agents found cocaine
wrappings.
1
The defendant’s last name was misspelled as Riviera-Solona in the indictment. This
opinion uses the correct spelling, Rivera-Solona.
2
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With the consent of Rivera-Solona’s girlfriend, agents also searched Rivera-
Solona’s own residence in Norman Park, Georgia. In the Norman Park residence,
agents found $46,640 in the master bedroom. They also found a rifle and a
shotgun.
A federal grand jury indicted Rivera-Solona with one count of possession
with intent to distribute over 500 grams of cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and 841(b)(1)(B)(ii).
B. Plea Agreement
Subsequently, Defendant Rivera-Solona entered into a written plea
agreement, wherein Rivera-Solona pled guilty to the charged drug offense, and the
government agreed not to pursue any additional, known federal charges. The
government also agreed to consider recommending variances or departures based
on Rivera-Solona’s cooperation with the government.
Among other things, the plea agreement provided that: (1) Rivera-Solona
would plead guilty with the understanding that the district court was not bound by
any estimate of the advisory sentencing range and had discretion in choosing a
sentence; (2) Rivera-Solona would not be permitted to withdraw his guilty plea on
the basis that the probation officer or the district court calculated a different
guidelines range than he anticipated; and (3) Rivera-Solona faced a statutory
minimum five-year sentence and a statutory maximum forty-year sentence.
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The plea agreement contained a sentence-appeal waiver. Under this
provision, Rivera-Solona agreed to waive his right to any appeal of his sentence,
either direct or collateral, unless the district court “impose[d] a sentence that
exceed[ed] the advisory guideline range” or the government appealed first.
The plea agreement also contained a stipulation of fact. At the outset, the
stipulation stated that the parties understood that the stipulation was not binding on
the district court and that the district court might “accept this stipulation as written
or in its discretion with the aid of the Pre-Sentence Report determine the facts
relevant to sentencing.” The stipulation stated that the parties agreed that the
government could prove beyond a reasonable doubt, inter alia, that: (1) while
conducting surveillance, agents followed Rivera-Solona as he drove to the
Coolidge residence and observed him loading items into his car from both the
house and a shed on the property; (2) when agents conducted a traffic stop, they
found approximately 1 kilogram of cocaine inside a child’s car seat in Rivera-
Solona’s car; (3) pursuant to a search warrant, agents searched the Coolidge
residence; (4) with the consent of Rivera-Solona’s girlfriend, agents conducted a
search of the Norman Park residence and found $43,640 in the master bedroom
closet; and (5) laboratory testing confirmed that the substance found in the car was
cocaine.
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In addition, the parties agreed that there was insufficient evidence to support
a firearms enhancement under U.S.S.G. § 2D1.1(b)(1) or to prohibit application of
the safety-valve, as follows:
The government and Defendant further stipulate that there is
insufficient evidence to support the application of the enhancement
found at U.S.S.G. § 2D1.1(b)(1) or to prohibit the application of
U.S.S.G. § 5C1.2(a)(2) in that the firearms recovered in this case were
not shown to be possessed by the Defendant, nor were there narcotics
recovered from the residence in which the firearms were recovered.
C. Plea Hearing
At Rivera-Solona’s plea hearing, the district court ensured that Rivera-
Solona was competent to enter a plea and reviewed the indictment and plea
agreement with him. Rivera-Solona stated that he had discussed the case with his
attorney and was satisfied with his representation. Rivera-Solona also informed
the district court that he had reviewed, understood, signed, and initialed the plea
agreement. He confirmed that the plea agreement was the complete agreement and
that he understood that its terms were not binding on the district court.
The district court had the prosecutor read the plea agreement’s stipulation of
fact out loud. Rivera-Solona indicated that he understood the stipulation of fact
and agreed that it was a true statement of his conduct.
The district court also reviewed the sentence-appeal waiver. Rivera-Solona
confirmed that he understood he was waiving his right to appeal his sentence,
either on direct appeal or collaterally, unless his sentence exceeded his advisory
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guidelines range or he had a claim for ineffective assistance of counsel. The
district court determined that there was a sufficient factual basis for the plea and
that the plea was entered freely and voluntarily.
D. Presentence Investigation Report
The presentence investigation report (“PSI”) reported facts consistent with
the plea agreement’s stipulation of fact. However, the PSI also stated that a
shotgun and rifle were recovered from the Norman Park residence and that Rivera-
Solona’s girlfriend “advised agents that the defendant had kept the firearms in a
shed at the [Coolidge] residence until recently when he brought them to [the
Norman Park] residence.”
The PSI recommended: (1) a base offense level of 26, pursuant to U.S.S.G.
§§ 2D1.1(a)(3) and (c)(7), for possessing 992.8 grams of cocaine; (2) a 2-level
dangerous weapons enhancement under § 2D1.1(b)(1); and (3) a 3-level
acceptance of responsibility reduction under § 3E1.1, yielding a total offense level
of 25. The PSI explained that the dangerous weapons enhancement applied
because Rivera-Solona had previously kept the guns in a shed where he conducted
his cocaine trafficking activities. Based on a total offense level of 25 and a
criminal history category I, the PSI initially calculated an advisory guidelines
range of 57 to 71 months. However, because Rivera-Solona faced a statutory
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minimum sentence of five years, the PSI adjusted the advisory guidelines range to
60 to 71 months. See U.S.S.G. § 5G1.1(c)(2).
Neither Rivera-Solona nor the government filed any written objections to the
PSI.
E. Sentencing Hearing
At the sentencing hearing, the parties did not raise any objections to the
PSI’s facts or guidelines calculations. The government recommended a sentence
within the advisory guidelines range calculated in the PSI. Although neither party
objected to the PSI’s application of the § 2D1.1(b)(1) firearm enhancement, the
district court explored the parties’ reasons for stipulating in the plea agreement that
there was insufficient evidence to support a firearm enhancement.
Specifically, the district court asked the prosecutor whether guns were
involved in the case. The prosecutor responded that although guns were found in
one of the locations, the parties had agreed and stipulated that there was
insufficient evidence to support application of the firearm enhancement. The
district court asked about the evidence with respect to the guns. The prosecutor
stated that the guns were not in Rivera-Solona’s possession when they were found,
but were found in a residence connected to Rivera-Solona, although not the
residence where the drugs were found.
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The district court inquired about the $40,000, and the prosecutor confirmed
that the cash was found in the same residence as the guns. The district court then
asked whether the government had concluded that there was sufficient evidence to
connect the $40,000 to Rivera-Solona and retained the money. The prosecutor
stated that he was not sure. The district court further stated “I would like some
explanation as to why, if the money was somehow connected with the drugs and
the Defendant and the guns were not somehow connected with the drugs or the
Defendant.”
Neither the prosecutor nor the defense attorney at the sentencing hearing was
involved in the plea agreement negotiations. The prosecutor stated that “all [he
could] go with is the stipulation . . . that there was not sufficient evidence to
connect the guns to the drugs.” Defense counsel concurred with the prosecutor,
stating “[t]hose two lawyers who negotiated this plea agreement would certainly
know more about what proof or lack of proof thereof they had with respect to the
guns.” Defense counsel stated that her understanding was that the two attorneys
agreed “that the small evidence that they had would not support a finding . . . under
the statute that the guns were connected in any way with the narcotics.” At the
district court’s questioning, defense counsel stated that she believed the guns were
found in the same residence as the money, but not in the same room. The
prosecutor indicated that he knew only what was in the plea agreement and that
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“the connections could not be sufficiently made . . . in an evidentiary way.” The
prosecutor also stated that he did not know whether the money was forfeited in
state or federal proceedings.
The district court recessed to allow the parties to try and contact the
attorneys who had negotiated the plea agreement. When the hearing resumed, the
prosecutor reported that he had spoken with the government’s attorney, and she
had no specific information about where the guns were found. The prosecutor
explained that the kinds of guns—a 410 shotgun and a 22-caliber rifle “rather than
hand guns or sawed off shot guns entered into the thought process of the difficulty
of proving the connection to the drugs.” The prosecutor also confirmed that the
money was administratively forfeited without a hearing after no one claimed it.
Defense counsel reported that she was unable to speak to the prior defense
attorney who negotiated the plea agreement. Defense counsel pointed out,
however, that according to commentary to the Sentencing Guidelines the firearm
enhancement did not apply to a hunting rifle found in a closet, and that the two
firearms could be considered hunting rifles. The district court explained that it had
raised these questions because “it simply seems curious . . . that the case has come
down as it has” and that it was “remarkable” that the government would ignore that
the money was found in proximity to the two guns. The district court stated that it
usually is “very deferential” to the government’s decision to enter into a stipulation
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and “generally give[s] them benefit of the doubt when they explain their decision,”
but that Rivera-Solona’s case was “very unusual.”
When the district court asked whether the parties had any objections to the
PSI, the government and the defense both indicated they did not have objections.
The district court reviewed the PSI’s guidelines calculations, and defense counsel
stated that she agreed with them. The district court then adopted the PSI
calculations and the resulting 60- to 71-month range. After considering the 18
U.S.C. § 3553(a) factors, the district court imposed a 71-month sentence. After
imposing the sentence, the district court asked whether Rivera-Solona had any
objections to the sentence, and defense counsel stated that he did not.
II. DISCUSSION
A. Breach of the Plea Agreement
On appeal, Rivera-Solona argues for the first time that the government
breached the plea agreement when it failed to object to the district court’s
imposition of the 2-level firearm enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1).
Ordinarily, we review whether the government breached the plea agreement de
novo. United States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004). However,
where, as here, the defendant failed to object to an alleged breach of the plea
agreement before the district court, we review for plain error. United States v.
Romano,
314 F.3d 1279, 1281 (11th Cir. 2002). Plain error exits when there is (1)
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error, (2) that is plain, (3) that affected the defendant’s substantial rights, and (4)
that “seriously affect[ed] the fairness, integrity, or public reputation of the judicial
proceedings.” Id. at 1281. An error is plain if it is “clear or obvious, rather than
subject to reasonable dispute.” Puckett v. United States,
556 U.S. 129, 135, 129 S.
Ct. 1423, 1429 (2009). For the reasons that follow, we conclude that the
government’s failure to object to the PSI’s recommendation of a firearm
enhancement and the district court’s adoption of the PSI at sentencing was not a
breach of the plea agreement, much less a “clear or obvious” breach.
“The government is bound by any material promises it makes to a defendant
as part of a plea agreement that induces the defendant to plead guilty.” United
States v. Horsfall, 552 F.3d 1275, 1281 (11th Cir. 2008) (quotation marks omitted).
To determine whether the government breached the plea agreement, we look at the
defendant’s reasonable understanding of the agreement at the time he entered his
plea.
Id.
The express terms of the plea agreement did not obligate the government to
do anything with respect to a § 2D1.1(b)(1) firearm enhancement. Instead, the
government merely agreed to the legal conclusion that the evidence was
insufficient to support such an enhancement. The plea agreement also recognized
that the district court had the discretion to determine any pertinent facts by a
preponderance of the evidence and was not bound by the parties’ stipulation.
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Moreover, the prosecutor’s statements at Rivera-Solona’s sentencing hearing
were fully consistent with the stipulation’s legal conclusion and its facts. In fact,
both the prosecutor and defense counsel advised the district court that the firearms
were not found in Rivera-Solona’s possession when he was arrested or in the
location where his drug distribution activities took place, but instead were found at
another residence connected to him. The parties further advised the district court
that the reason they believed there was insufficient evidence to support the firearm
enhancement, despite the proximity of the firearms to the money, was the type of
firearms found. During the district court’s exploration of the parties’ reasons for
entering into the stipulation, the prosecutor did not say anything to undermine the
stipulation’s legal conclusion.
Even if it would be reasonable for Rivera-Solona to believe that the parties’
legal stipulation prevented the government from advocating for application of the
firearm enhancement, see United States v. Taylor, 77 F.3d 368, 370 (11th Cir.
1996), it would not be reasonable to expect the government also to affirmatively
object to the application of the enhancement, even when the defendant himself
does not object to it. See United States v. Benchimol,
471 U.S. 453, 455-56,
105
S. Ct. 2103, 2105 (1985) (stating that, unless specified in the plea agreement, the
government is not required to “enthusiastically” commit itself to its obligations
under the plea agreement because Federal Rule of Criminal Procedure 11 “speaks
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in terms of what the parties in fact agree to, and does not suggest that such implied-
in-law terms [be] read into [a plea] agreement”). Notably, Rivera-Solona does not
cite any authority establishing that the government’s promise not to recommend a
particular sentencing enhancement also includes a promise to affirmatively object
to that sentencing enhancement if the probation officer includes it in the PSI’s
calculations or if the district court imposes it. At the very least, there is no error
that is plain in this case. See Puckett, 556 U.S. at 143, 129 S. Ct. at 1433
We also recognize that Rivera-Solona cites United States v. Boatner, 966
F.2d 1575 (11th Cir. 1992), but Boatner is materially distinguishable and did not
require the government to object to the PSI or the district court’s sentence.
In Boatner, the parties stipulated in the plea agreement to a particular drug
quantity, the probation officer used a much larger drug quantity, and the defendant
objected. 966 F.3d at 1577. Importantly, at sentencing the government
affirmatively supported the probation officer’s drug calculation.
Id. The
government stated that it had stipulated to the drug quantity because “[a]t the time
[it] was what [the government] could prove,” but that the probation officer had
gathered information from “other cooperating witnesses” who had “provided
independently” the additional drug amounts, and the probation officer had merely
“done his duty in putting those into the report.”
Id. Further, the probation officer
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even testified that he had actually obtained the additional drug amounts from two
of the investigators, one an FBI agent. Id. at 1577-78.
On appeal, this Court determined that the drug quantity stipulation was a
stipulation of fact intended to bind the government and that the government had
breached that stipulation of fact when it “introduced evidence through the
presentence investigation report showing” that the defendant was involved with a
larger drug amount.
Id. at 1578-79. The Court concluded that “the government
violated its agreement at the sentencing hearing when it attempted to bolster the
presentence investigation report.”
Id. at 1579.
This case is materially different from Boatner in at least two significant
respects. First, the defendant in Boatner objected to the information in the PSI that
was inconsistent with the plea agreement. Because the defendant in Boatner
objected, Boatner says nothing about when and if the government breaches a plea
agreement by failing to object to the PSI’s calculations when the defendant also
fails to object.
Second, the conduct in Boatner that breached the plea agreement was the
government’s investigators providing inconsistent information to the probation
officer in an attempt to bolster the PSI. At Boatner’s sentencing hearing, the
probation officer testified that government agents gave him the larger drug
quantity. Here, there is no such evidence, and Rivera-Solona does not contend that
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the government breached the plea agreement in this way. Thus, Boatner does not
establish at all, much less plainly, that the government breached the plea agreement
by failing to object to the PSI and the district court’s firearm enhancement in
Rivera-Solona’s case.
Finally, we note that Rivera-Solona expressly agreed that the district court
was not bound by the parties’ stipulation and would determine the facts. The facts
in the PSI established that Rivera-Solona had stored the firearms in the shed at the
Coolidge residence where he conducted his cocaine distribution activities and then
moved them to the Norman Park residence shortly before his arrest. The district
court was fully aware of the parties’ stipulation that there was insufficient evidence
to support the firearm enhancement, having discussed it with the parties at length.
The district court obviously disagreed with the parties given that, after exploring
their reasons for reaching this legal conclusion, it adopted the PSI’s guidelines
calculations. On this record, Rivera-Solona has not carried his burden to show
plain error.
B. Sentencing Claims
Rivera-Solona raises two sentencing issues: (1) there was insufficient
evidence to support the U.S.S.G. § 2D1.1(b)(1) firearm enhancement, and (2) his
71-month sentence is substantively unreasonable.
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Rivera-Solona does not dispute that these claims fall within the scope of his
sentence-appeal waiver. Neither of the circumstances under which Rivera-Solona
reserved his right to appeal his sentence has occurred. Rivera-Solona’s 71-month
sentence did not exceed his advisory guidelines range of 60 to 71 months and has
not been appealed by the government. Further, Rivera-Solona does not contend
that the sentence-appeal waiver is unenforceable because it was not made
knowingly and voluntarily. See United States v. Bushert, 997 F.2d 1343, 1351
(11th Cir. 1993) (stating that a sentence-appeal waiver will be enforced if it was
made knowingly and voluntarily).
Instead, Rivera-Solona argues that the government’s breach of the plea
agreement “releases” him from the sentence appeal waiver. Because, for the
reasons already discussed, Rivera-Solona has not shown that the government
breached the plea agreement, we need not address this issue. Accordingly, we
dismiss Rivera-Solona’s appeal to the extent he raises these two sentencing claims
barred by his sentence-appeal waiver.
AFFIRMED IN PART, DISMISSED IN PART.
16
